Local Government: Municipal Structures Bill: hearings

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Cooperative Governance and Traditional Affairs

21 July 1998
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Meeting report

CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
22 July 1998

LOCAL GOVERNMENT: MUNICIPAL STRUCTURES BILL: HEARINGS


Documents handed out
Electoral Institute of South Africa (Appendix 1)
MEC for Local Government - North West Province (Appendix 2)
Council of Traditional Leaders (Appendix 3)
Western Cape Department of Health (Appendix 4)
South African Local Government Association (Appendix 5)

 

Problems identified:

1. Travel costs to district Councils in the rural areas. No consultation at the community level. No representation of people in the District Councils.

2. North western Province has an indigenous community numbering 350 000 people and falls under the authority of the traditional leadership in the area. Resources are discussed by the traditional leaders and the adult members of the community such as water, electricity, roads, schools, land dispossession and ownership. This makes these rural communities different to other areas since the circumstances and situations are not the same. The belief is that the government views the traditional leadership in an autocratic manner since the trad. leaders only have the right to consultation and are not part of the decision making process. The White Paper on Local Government and Traditional Leaders/Authorities needs to be re-examined with regards to the constitutional principles of this country. Section 77 states that indigenous communities must be consulted but this does not go far enough. MEC’s ought to be empowered to appoint traditional authorities.

3. The aim of the submission on behalf of the Traditional Leaders is to assist them by representing the chiefs in the Northern Province, North West Mpumulanga and Kwa Zulu-Natal. The view held is that the bill is not constructive towards these communities. The government is incorrect to suggest that MEC’s should appoint chiefs. The traditional authorities and chiefs should negotiate between themselves. The guidelines given to appoint chiefs are not applicable. Chiefs are born into this position and their powers extend into metropolitan areas, which the government fails to realise. The customary laws, rules and power structures involved are there to protect the tribe. Under the new government it is believed that the powers of chiefs are undermined while under the apartheid system they were protected. The government are seen to be removing the genuine chief and replacing them for ones of their own liking whilst stripping them of their powers. Traditional leaders and authorities reminded the hearing that they can influence party politics by demonstrating to the government the number of people they represent thus having the power to affect the voting outcome. They threaten to side with political parties who support traditional leaders.

4. Traditional leaders should not be subjected to local councils as they constitute local councils in their own right. politicians should not decide who sits on traditional district councils. In addition, there is no need for MEC’s /politicians to take decisions on behalf of traditional leadership. It should also be remembered that the role of trad. leaders is not simply about customary law but it rather encompasses all aspects of life.

5. open floor discussion. Yunnus Carrim reminds these groups that there is an inherent conflict here between the legitimacy of a one-person one-vote democracy on the one hand and the sanctity of traditional leadership on the other. He argues that the constitution is democratic by ensuring that traditional leadership is protected. A democracy as been installed that holds respect for cultural difference and therefore trad. leaders. He goes on to say that some of these submissions from the pro-leadership groups have no recognition of the sanctity of democracy.

The government defends itself by stating that democratic principles need to be upheld and the challenge it faces is to respect trad. leadership by not undermining it but simultaneously engaging the democratic participation of traditional leaders.

6. Mr Carollus retorts that these communities do respect the constitution but the problem remains that certain communities are not being recognised and thus lacking representation. They are also not receiving money and little funds are being plowed back into their areas. He questions whether the constitution is for ‘one people’ in this country or for all? he assures that he does not want to divide South Africa back into tribal authorities again.

7. Department of Health -Western Cape:

The health sector is in the process of establishing a district health system and municipalities incorporating rural areas should be formed. In general they support the bill but they see certain areas of difficulty: S.3 and S.6 For example S.6 uses term ‘sparsely populated’. These people have to be serviced and there I a strong argument for including these areas into nearest towns. The approach should aim to exclude as few areas as possible. There is also a concern about the viability of servicing the ‘megacity’ areas since health care is population orientated. the current substructure system is an improvement but there could still be a problem with the size of metropolitan areas.

8. Mayor of East London Municipality:

East London supports the bill I general terms and regards it as an improvement. There are concerns, however, that some parts may be in contradiction with the constitution. With regards to constitution S.153 - here this bill attempts remove self-government (S. 68-74 & S. 76-78 in bill).

9. Pietermaritzburg:

In general support for the bill. Debate in the town at present regarding the definition (metropolitan area or not?) There is deadlock over this debate. Pietermaritzburg wants clarity about the intention in the phrase in the bill, ‘can reasonably be regarded as connovations’. Category B has classed it as a Local council which is a misnomer since the population is larger than realised due to the influx of commuters coming in from the N3 belt.

10. South African Local Government Association:

Support bill. Reservations over S. 11 of bill. There are two problems for the rural municipal areas. 1. Lack of institutional and administrative capacity. 2. Lack of financial / tax base. Thus there is a problem about providing basic services: water, electricity, administration, management.

Appendix 1: Electoral Institute of South Africa

COMMENT ON THE LOCAL GOVERNMENT : MUNICIPAL STRUCTURES BILL

Prepared and submitted by the Electoral Institute of South Africa (EISA)

This comment has been prepared in response to a request for comments on the Local Government : Municipal Structures Bill, 1997. The request was issued by the Select Committee on Constitutional Affairs and Public Administration, and the Portfolio Committee on Constitutional Affairs.

Constitutional background to the Bill

The Constitution of South Africa 108 of 1996 establishes a sphere of local government which, in terms of s 151(1) `must be established for the whole of the territory of the Republic’. The establishment of municipalities takes place in terms of s 155(1) of the Constitution. It establishes three categories of municipality. They are : a category A municipality which has exclusive executive and legislative authority (s 155 (1)(a), a category B municipality which shares municipal executive and legislative authority in its area with a category C municipality within whose area it falls, and a category C municipality which has municipal executive and legislative authority in an area that includes more than one municipality.

Section 155 also states that national legislation must define the different types of municipality that may be established within each of the categories A, B and C.

The national legislation referred to is in its early stages. It takes the form of a draft bill, namely the Local Government: Municipal Structures Bill.

This comment consists of two parts. Part I addresses specific clauses in the Bill. Part II focuses on specific items relating to the electoral system provided for in Schedule 1 to the Bill.

Since it deals with a draft Bill, this comment refers to clauses rather than sections.

PART I

1. Clause 2 MECs to establish municipalities

The Bill provides, in what should be clause 2(4) not 2(2),

`Before publishing a notice in terms of this clause the MEC for local government must consult -

(a) organised local government in the province; and

(b) the existing municipalities affected by the notice.

It is submitted that this clause is unclear on what is required by `consult’. Furthermore, the Bill provides no definition on the meaning of `consult’.

It is submitted further that there are two possible interpretations of `consult’.

These are consult in the form of `in consultation with’, and ` after consultation with’. Section 233, the definition section of the interim Constitution defines these two phrases.

Section 233 (3) of the interim Constitution provides that, when in terms of that constitution, a functionary is required to take a decision in consultation with another functionary, such decision shall require the concurrence of such other functionary: Provided that if such other functionary is a body of persons it shall express its concurrence in accordance with its own decision-making procedures. This may be categorised as the stronger form of consultation.

Section 233 (4) of the interim Constitution provides that when in terms of that Constitution any functionary is required to take a decision after consultation with another functionary, such decision shall be taken in good faith after consulting and giving serious consideration to the views of such other functionary. This may be categorised as the weaker form of consultation.

It is not suggested that the draft Bill should be scrutinised against the provisions of the interim Constitution, however, it is clear that the definition section of that Constitution provides some insight into the meaning of `consult’.

Except in Schedule 6, dealing with the Transitional Arrangements, the final Constitution does not rely on the words `in consultation with’ and `after consultation with’. However, it should be noted that in s 85(2) the Constitution requires the President exercise executive authority together with the other members of the Cabinet. This represents a form of consultation. Arguably the section requires consultation in the stronger form.

Apart from clause 2, `consult’ occurs in clause 6(2) in the Bill. It is suggested that, in each of these clauses, the more appropriate form of consultation is the stronger form of `in consultation with’ which requires the concurrence of the second functionary.

If this interpretation is accorded to clause 2, the establishment of a municipality will happen in concurrence with organised local government in the province and the existing municipalities affected by the notice. Clause 6(2) pertains to repealing, replacing, or amending dealing with a notice re-determining a municipal boundary. The Clause requires that the MEC must consult the municipalities affected by the re-determination. It is suggested that consultation in the stronger form is required.

This form of consultation must be contrasted with the form of consultation in clause 69(3) the Bill relies on the second type of consultation when it provides that the MEC for local government in a province after consulting the provincial House of Traditional Leaders, may by notice in the Provincial Gazette ... ‘.

2. Clause 9 (2) Areas in which local municipalities not viable

This heading of this clause should be amended to include the word `are’ so that it reads `Areas in which local municipalities are not viable’.

Paragraph (a) should be amended to read `the establishment of a local municipality in that area will not be conducive to not of fulfilment ...’.

3. Clause 24 Assignment of powers an duties to committees and other functionaries

The above heading refers to the `assignment’ of duties. The rest the clause refers to the `delegation’ of duties and powers. The clause should be re-drafted to clarify whether an assignment or a delegation of powers and duties is intended, since the two processes have different legal implications . It is submitted that in the context of the clause a delegation of powers is intended.

4. CHAPTER 3

INTERNAL STRUCTURES AND FUNCTIONARIES

3 a) Clause 33 Election of members of executive committees

This clause provides,

`A municipal council must elect the members of its executive committee at a meeting

a)...

b)... ‘

This clause does not expressly state that a municipal council must elect members of the executive committee from amongst the members of the council at a meeting .... ‘. It is therefore open to an interpretation that members of the executive committee may be elected by council members from outside of the council. If this is so, members of the executive committee would be individuals who had not been elected to the council by the electorate.

It should be noted that the Constitution envisages a similar possibility at national level. Section 91(3)(c) provides that the President may select no more than two members from outside the Assembly.

However, clause 33 read with other clauses, for example, 35(3), suggests that this is not what the drafters of the Bill intended. Clause 35(3) provides that `[a] member of the executive committee vacates office during a term if that member ceases to be a councillor. This clause suggests a degree of overlap of membership between the municipal council and the executive committee. This may be seen as a degree of responsible government, at local government level.

However, should it be the intention of the drafters that the executive committee is to be elected from the members of the council, this is implicit rather than explicit in clause 33.

The uncertainty in meaning which attaches to clause 33 also affects the meaning of clause 35(1)(b). If a member of the executive committee is removed from office as a member of the committee, the question arises whether such member remains a member of the council. This question presupposes that it is the intention of the drafters that the member of the executive committee was a member of the council in the first place.

It should be noted that the Constitution provides for a system of responsible government at the level of both national and provincial government. In this regard reference should be made to sections 91(2) and 132(1) of the Constitution respectively.

It should also be noted that other clauses in the Bill make allowance for a form of responsible government. In this regard clause 33 should be contrasted with clause 43 which provides that the municipal council must elect an executive mayor from among the councillors. Also, in the case of an executive mayor, he or she must be elected from among the councillors.

If it is the intention of the drafters to provide for an executive committee that is elected by, and from among the council members, then clause 33 should be amended to reflect this intention.

Clause 33 makes provision for the election of the executive committee by the council. Reference is made to this election in clause 34 (Term of office of member) and clause 35(3) (Vacancies). However, the Bill does not specify how the election of the executive committee is to take place.

Schedule 3 to the Bill sets out the procedure whenever a municipal council meets to elect a speaker, executive mayor or a mayor. There is no similar provision to deal with when a municipal council meets to elect an executive committee.

b) Clause 35 Vacancies ( in the executive committee)

In regard to clause 33, it is worth noting the fact that in terms of s 35(2) a member of the executive committee who is a councillor representing a ward, and who changes party affiliation, loses his or her seat on the executive committee. However, such councillor then becomes eligible for re-election.

This position supports the implicit meaning of clause 33, that members of the executive committee, are to be elected from members of the council, who have in turn, been elected by the electorate, notwithstanding the absence of express words to this effect.

Clause 44(2) also provides that an executive mayor who is a councillor representing a ward, vacates office as executive mayor if that person changes party affiliations, but is eligible for re-election.

Clauses 35(2) and 44(2) do not prohibit a councillor ( who may be a mayor) from `crossing the floor’ of the council. However, when this occurs if the councillor happens to be a member of the executive committee, he or she loses his or her place on the committee.

Clause 32(2) provides that an executive committee elected by the council must report to the council on a monthly basis. The intention of the drafters of the Bill seems to be that since the executive committee is elected by the council, it is at all times accountable to it, therefore, the executive members do not possess a free mandate to `cross the floor’ to another party. Should member wish to do so he or she will lose his or her membership of the executive committee.

PART II

According to a 1997 report on the Convention for the Elimination of all Forms of Discrimination Against Women (CEDAW) the percentage of seats won by women, at local government level, after the 1995 elections was as follows :

 

Proportional Ward Overall Unknown

Eastern Cape 32% 17% 26% 18%

Free State 32% 8% 18% 1%

Gauteng 28% 12% 20% 1%

Mpumalanga 32% 7% 20% 1%

North West 29% 11% 19% 3%

Northern Cape 19% 11% 15% 1%

Northern Province 24% 9% 15% 1%

Western Cape 19% 13% 15% 1%

Total 29% 11% 19% 5%

Note : Elections for KwaZulu- Natal and parts of the Western Cape were held in 1996.1

The above table indicates that after the last local government elections, women are under-represented at local government level. The electoral system relied on these elections was similar to the one presented in the Bill.

Clause 15 Determination of the number of councillors

The upper limit of 150 councillors as defined in 15 (1)(a) seems excessive. The country’s largest Metropolitan Council, Johannesburg council currently has 132 ward councillors and 88 PR councillors, a total of 220. This number could be halved and still provide the same level of service once the number of voters in each ward has been standardised. The recommendation is that the maximum number of councillors for the largest councils should not exceed 100.

SCHEDULE 1

Item 3 – Number of wards

The ratio of 60% ward representation and 40% proportional representation expressed in the Bill is the same ratio relied upon in the last local government elections.

It is suggested that the under-representation of women be given due consideration by the drafters of the Bill. It is strongly suggested that ratio of wards to proportional representation provided for in the Bill be amended to one of 50% proportional representation and 50% ward representation to increase the representation of women, and to ensure that the Bill contributes to greater representative democracy at local government level.

Item 11 Number of votes

The value of the system of allowing a voter in a metropolitan council area two separate votes, one for a ward councillor and one for PR, is debatable. Although it permits an individual voter the luxury of splitting his/her votes between two parties or candidates, the overall effect of this is negligible. Costs could be reduced significantly if only a single vote is permitted. In the event of the voter opting for an independent candidate, his/her vote would automatically be discounted in the determination of the PR result, as is specified in the formula in paragraph 14 (variable C).

Item 13 Party Lists

Party PR lists should allow for the inclusion of the names of persons who are candidates in wards so that they become eligible to be PR councillors in the event of losing the ward election. The name of a candidate on the PR list who wins a ward is automatically then deleted from the PR list when it comes to determining who have been elected as PR councillors. In terms of achieving gender equity in councils, section (3) requires parties to ensure that 50% of their list candidates are women. It is recommended that these names be placed on the top half of the list, to compensate for the possibility that the majority of ward candidates might be males. In the event that a large number of women are elected as ward councillors, councils would become female-dominated. This is possible in metropolitan areas, where there are already relatively large numbers of women councillors. It is unlikely in rural areas, where the opposite tends to be true.

Items 15 and 18 Allocating of seats and Excessive Seats

The allocation of PR seats as explained in these sections is the fairest way of achieving overall proportionality in the composition of the council. Only in extreme cases is overall proportionality not achievable. The procedure is best illustrated by means of four of examples, as detailed on the pages that follow, with an allocation of twenty percent of seats for PR, as recommended above.

[Ed Note: table in EXAMPLE A had not been included]

Wards won: A=5 B=4 C=3. There will be 3 additional PR seats (20% of the total number of seats) in the council, bringing the total to 15.

Applying the formula from paragraph 14 to this example, the quota of votes for each seat is:

A +1 = 57742 +1 = 3610

B-C+1 15-0+1

In terms of Section 15 (1),

Party A is entitled to a total of 26277 = 7 seats. There is a surplus of 1007 votes

3610

Party B is entitled to a total of 18638 = 5 seats. There is a surplus of 588 votes

3610

Party C is entitled to a total of 12827 = 3 seats. There is a surplus of 1997 votes

3610

Party A has already won 5 seats so it is entitled to 2 more.

Party B has already won 4 seats so it is entitled to 1 more.

Party C has already won 3 seats so it is not entitled to any more.

The final seat allocation is A=7 B=5 C=3.

[Ed note: Table in EXAMPLE B has not been included.]

Wards won: A=4 B=4 C=4. There will be 3 additional PR seats (20% of the total number of seats) in the council, bringing the total to 15.

Applying the formula from paragraph 14 to this example, the quota of votes for each seat is:

A +1 = 57315 +1 = 3583

B-C+1 15-0+1

In terms of Section 15 (1),

Party A is entitled to a total of 17386 = 4 seats. There is a surplus of 3054 votes

3583

Party B is entitled to a total of 25220 = 7 seats. There is a surplus of 139 votes

3583

Party C is entitled to a total of 14709 = 4 seats. There is a surplus of 377 votes

3583

Party A has already won 4 seats so it is not entitled to any more.

Party B has already won 4 seats so it is entitled to 3 more.

Party C has already won 4 seats so it is not entitled to any more.

The final seat allocation is A=4 B=7 C=4.

[Ed note: Table in EXAMPLE C has not been included.]

Wards won: A=11 B=13 C=1. There will be 6 additional PR seats (20% of the total number of seats) in the council, bringing the total to 31.

Applying the formula from paragraph 14 to this example, the quota of votes for each seat is:

A +1 = 122328 +1 = 3824

B-C+1 31-0+1

In terms of Section 15 (1),

Party A is entitled to a total of 47570 = 12 seats. There is a surplus of 1682 votes

3824

Party B is entitled to a total of 51921 = 13 seats. There is a surplus of 2209 votes

3824

Party C is entitled to a total of 22837 = 5 seats. There is a surplus of 3717 votes

3824

Party A has already won 11 seats so it is entitled to 1more.

Party B has already won 13 seats so it not entitled to any more.

Party C has already won 1seat so it is entitled to 4 more.

This leaves 1unallocated seat. It is thus awarded to the party that has the largest surplus, Party C.

The final seat allocation is A=12 B=13 C=6

[Ed. note: Table in EXAMPLE D has not been included.]

This is an extreme case in which one party wins all ward seats in spite of significant support for the other parties, as in the recent Lesotho general elections.

Wards won: A=25 B=0 C=0. There will be 6 additional PR seats (20% of the total number of seats) in the council, bringing the total to 31.

Applying the formula from paragraph 14 to this example, the quota of votes for each seat is:

A +1 = 125907 +1 = 3936

B-C+1 31-0+1

In terms of Section 15 (1),

Party A is entitled to a total of 67781 = 17 seats. There is a surplus of 869 votes

3936

Party B is entitled to a total of 43781 = 11 seats. There is a surplus of 485 votes

3936

Party C is entitled to a total of 14345 = 3 seats. There is a surplus of 2537 votes

3936

Party A has already won 25 seats so it is not entitled to any more.

The six PR seats have thus to be divided between parties B and C in proportion to the total share of the vote received by each of these parties.

Party B is entitled to 11 x 6 = 4,7 = 5 seats.

14

Party C is entitled to 3 x 6 = 1,3 = 1 seat.

14

The final seat allocation is A=25 B=5 C=1


Appendix 2: COMMENTS ON THE MUNICIPAL STRUCTURES BILL BY THE NORTH-WEST PROVINCE

22 JULY 1998

A. INTRODUCTION

The Municipal Structures Bill represents an important milestone in the transformation of local government in South Africa. It presents us with the potential to begin a comprehensive process of addressing the needs of our people especially in the rural areas.

As the North-West, we welcome this opportunity and our comments will be both of a general and specific nature.

B. GENERAL COMMENTS

As a province, we are satisfied that some of the issues we previously raised have been adequately addressed. However, it is also fair to say that some other issues, controversial as they may have been, have also received attention in the latest draft.

This Bill, Mr Chairperson, contains new innovative and creative approaches to the transformation process.

The challenge facing us today is to complete the transformation process, and to entrench a new system of government at local level which addresses the needs of all South Africans, plays a key role in the war on poverty, assures equality in municipal service provision and empowers previously disadvantaged communities to play a leading role in both social and economic development.

This Bill, Mr Chairperson, certainly provides us with clarity and certainty on the character of local government during this critical phase in the reconstruction of our country. Local government is our only hope to ensure that our people's dignity is restored.

In our endeavour, as various groups, to shape the new local government system, we must bear in mind our collective responsibility to move this process with maxim consensus. There can be no better time than now to do so.

C. COMMUNITY PARTICIPATION

Community participation is crucial for the success of local government. Whilst the Bill makes reference to annual reporting on the involvement of communities and communities organisations in Clause 39(3)(g), it does not indicate how the participatory process in local government is going to be ensured.

Section 152(e) of the Constitution, enjoins local government to explicitly encourage participation of communities and community organisation in matters of local government. I want to suggest that clause 39 be improved through the provisions of section 152(1) of the Constitution.

D. PARTICIPATION OF TRADITIONAL LEADERS

Mr Chairperson, it is heartening to note that the important issue of the participation of traditional leaders is provided for in clause 77 of the Bill. In South Africa, traditional leaders are indispensable partners in our battle for the sustainable development of the countryside and the extension of democracy to our rural communities. It is widely recognised that the issue of the relationship between traditional leaders and modern forms of government can be quite complex and beset with difficulties. For us in South Africa, the potential and capacity exists to address this complex issue and find common ground within the context of our Constitution. The founding provision of our Constitution highlight the following values:

* Human dignity

* Achievement of equality; and the

* Advancement of human rights and freedoms.

In trying to find a common platform for co-operation, we must be guided by these fundamental principles. If we fail to develop sustainable development for communities in rural areas. then we will have failed to achieve one of the most important elements of South Africa's transformation. There is not only a constitutional responsibility to ensure that every citizen can enjoy both his or her cultural and traditional life-style without being denied the benefits of a democratic dispensation, we also have a moral responsibility to do so.

I think that during this transition phase, we have an ideal opportunity to address some of our perceived or real problems and develop the appropriate mechanisms for co-operation in the interest of the development of our rural areas. We must get the right balance between strong democratic representation and the traditional existence of our communities.

The White Paper on Local Government suggested on page 74 the creation of a rural chamber - this option, if it can be, provides us with some basis to consolidate the participation of traditional leaders in accordance with clause 77.

The debate about the role of traditional leaders in a democratic dispensation in South Africa should not take us away from the reality of how our people live and what obligation we have to change that situation.

Our debate must avoid issues of controlling the rural areas but should focus on how traditional institutions and democratic local government may develop a common agenda for rural development.

The position of traditional leaders in the new dispensation as confirmed in this Bill is secured.

The Council of Traditional Leaders and the various provincial houses should explore the potential for co-operation envisaged in this Bill. In the North-West there is no doubt that our Traditional Leaders will support us in endorsing this particular provision on the participation of traditional leaders. We must all use our practical experience over the last four and a half years to move forward.

E. SPECIFIC COMMENTS

Clause 6(2) (a) which deals with sparsely populated areas:

In a grammatical sense, the expression "conducive to" may be preferable to "conducive of'.

Clause 10 which deals with types of district municipalities:

The following amendments are proposed:

* Paragraph (b) providing for a district executive mayor type, to be deleted and to be replaced with the district chairperson type.

* Iris further proposed to include a category (d) which provides for a district rural chamber type to be consistent with the proposal in the White Paper and also to provide opportunities for a more progressive participation of traditional leaders and to give specific focus on rural areas.

Clause 13(2) (b) (iii) which deals with the establishment of a municipalities on existing municipalities: Placing the responsibility on the MFC for local government to regulate the retrenchment of staff in a section 12 notice may be undesirable both politically and legally. where a new municipality is established in terms of section 12 and an existing municipality for the area is disestablished, the new municipality should be the legal successor of the disestablished municipality for all purposes, including becoming the new employer of the staff complement of the existing municipality. Any restructuring in relation to personnel, including possible retrenchment, should be an issue to be addressed by the new municipality (both as employer and a distinct sphere of government) in accordance with applicable labour legislation.

Clause 14 which deals with the review and rationalisation of existing municipal by-laws: In the last line of the clause the expression "rationalised by the" has been repeated.

Clause 21(a) which deals with the intervals at which elections must be held: It is noted that there has been some debate that municipal elections should be held at intervals of five years rather than four years.

Clause 50 which deals with the executive mayor option: It was noted that the type of municipality opting for an executive mayor may precipitate conflict between the executive mayor and the CEO of a council as their powers, duties and functions may be seen to overlap in certain cases. Such possible conflict will only be avoided where the incumbents of both positions are mature and responsible and interpret and apply the legal provisions pertaining to their respective roles strictly.

Specific comments on Schedule 6 are as follows:

It is proposed that item 1 of the Schedule be amended to incorporate the principle that the identification of traditional leaders to participate in municipalities must be done by the MEC in consultation with the provincial House of Traditional Leaders.

Mention should also be made of the fact that the concept of a "rural chamber" in a council (as set out in the white Paper) to safeguard the interests of rural areas incorporated into the area of jurisdiction of municipalities does not seem to have been pursued in the Bill.

Apart from these comments, the Bill should generally be supported. It is pleasing to see that the developmental and evolutionary model of Local government adopted by the North-West Province and applied to the TRC's in the Province has been expressly recognised in clause 84 of the Bill.

F. CONCLUSION

Traditional authorities need to adapt to the new constitutional changes. It is our view that traditional authorities can play a key rote without being transformed into local government per se. Traditionally these institutions were nor intended to perform local government functions. The distortions of the past about this institution is creating the problems that we are experiencing today. We are confident that traditional authorities can survive in the new dispensation without becoming local government. If we insist in transforming them to perform local government functions, they will have to be subjected to the rigours of democratic elections, including the election of chiefs themselves, because in democratic elections heredity is secondary.

We must avoid subjecting elements of the whole institution of traditional leadership to elections. Institutions of traditional leadership are there to promote the well-being of the tribe at both a cultural and spiritual level, hut must work with local government to ensure socio-economic and political development of the communities.

Chairperson, I want to reassure traditional leaders that they are important partners in taking the RDP forward. We need to work together, guided by our Constitution. We have the potential to solve our problems no matter how complex and emotive they may be.

Thank you.

Appendix 3: Council of Traditional Leaders

SUBMISSION BY THE CHAIRPERSON OF CONSTITUTIONAL DEVELOPMENT COMMITTEE OF THE COUNCIL OF TRADITIONAL LEADERS NKOSI M. NONKONYANA (ZANEMVULA!)

AT THE PUBLIC HEARING ON LOCAL GOVERNMENT MUNICIPAL STRUCTURES BILL ON 21-22 JULY 1998, CAPE TOWN

1. INTRODUCTION

1.1 Honourable chairperson and Honourable members of the committee, distinguished guests, ladies and gentlemen, I wish to record our sincere thanks and gratitude to you for Inviting us to make an input to this important Bill - Local Government Municipal Structures Bill, 1998.

1.2 The Houses of Traditional Leaders submitted various papers during the Green Paper process that led to the drafting and publication of the white paper process. The views of Traditional Leaders and their communities as contained in those submissions must be taken into account before the Bill is passed.

1.3 We have made numerous submissions in forums of this nature and it is regretted that our submissions have to a greater extent been ignored and we trust and pray that our views will lend on deaf ears.

1.4 We and our communities are hoping and praying that our structures that have been suppressed from Colonial era up to now will be recognised, protected and promoted.

1.5 It is therefore our hope that this submission will receive its due consideration by this committee.

2. CONSTITUTIONAL PROVISIONS

We would like to remind all political parties in our country that we all agreed on 11 December 1993 about the role of Traditional Leaders in all spheres of Government. (See Resolution No.34 or the Negotiation Council)

2.2 In line with the aforementioned resolution all political parties adopted as one of the constitutional principles that would bind the Constitutional Assembly the following constitutional principles viz.

(a) "The institution, status and role of traditional leadership, according to Indigenous law, shall be recognised and protected in the Constitution.

See Constitutional Principles XIII in the Schedule to Interim Constitution Act No.200 of 1993.

(b) "At each level of Government there shall be democratic representation. This principle shall not derogate from the provisions of principle XIII." See Constitutional Principle XIV in the Schedule to Constitutional Act No.200 of 1993.

2.3 Chapter 7 of the final Constitution Act 108 of 1996 provides for the establishment of Local Government and Chapter 12 provides for the role of traditional leadership as an institution at a local government level on matters affecting the communities.

2.4 We would like to remind you that we objected to the certification of the final Constitution on the basis that the role of traditional leaders is couched in vague terms and leaves our Institution in the mercies of politicians. The Constitutional Court certified the Constitution as having been consistent with the constitutional principles but stated that it reserved the right to re-visit Its decision should it transpire that there are laws which will be passed in this country to undermine our institution.

2.5 The Bill clearly provides for the establishment, protection and promotion of municipality structures and subject to the traditional structures to the authority of municipalities. We want to make it crystal clear that we will never ever surrender and subject ourselves to the authority of municipalities. We firmly believe that traditional authorities must be democratised and that they be recognised at least as primary tier of local sphere of Government.

3. DEFINITIONS

3.1 Clause 1 of the Bill does not contain any definition of a traditional authority and above all there is not clarity about rural areas particularly those failing within the area of jurisdiction of traditional authorities.

3.2 Furthermore the definition section clearly defines the terms pertaining to municipality which clearly suggest that the drafters of the Bill are urban bias and, with respect, promotes the westernised concepts at the expense of our own. We reject Eurocetrism.

3.3 The definition section should therefore provide definitions such as "Traditional leader" "Traditional authority".

3.4 The definition of "ward" should also provide for traditional communities and specifically provides that the determination of wards should not cut observed there is a danger of faction fighting eruption that may lead to civil war. (Chapter 1)

4. CHAPTER 1

PROPOSED MODEL FOR RURAL LOCAL GOVERNMENT

4.1 We propose that the Government should recognise that at local level three different structures should be recognised and maintained namely:

(a) Metropolitan Local Government

(b) Town/village Municipal Council

(c) Traditional Authority

The system of administration and government in urban and rural areas is not the same and above all rural development has been neglected whilst urban areas were preferred for development. Should this distinction not be maintained there is a danger of neglecting rural development again. Above all there is a potential danger of burdening traditional communities with debts of almost bankrupt municipalities who more often than not have no stable governance.

The traditional authorities must be recognised as a primary tier of local Government. That each and every administrative area within an area of a traditional authority must constitute a ward and that the municipal area within a magisterial district must constitute a separate primary authority. The traditional heads of administrative areas should be ex officio members of the traditional authority.

The Councillors of traditional authority should be democratically elected from each ward within its area of Jurisdiction.

4.3 We are of the view that party politics are divisive by their nature and in view of the fact that our societal organisation is based on communalism and consensus-driven participatory democracy rather than political ideologies, there should be no role for party politics at this level in traditional communities. We cherish the notion of social solidarity ("Simony!"). However we are prepared to accept that 40% of elected councillors could represent political parties.

4.4 The councillors at the primary level should elect representatives to the regional authority to represent their constituencies. Such a regional authority may be a district council that is proposed in this Bill. The heads of traditional authorities should be members of the Regional Authority/District Council together with councillors elected by other councillors. The mayors of stand-alone towns or villages and a representative of municipal councillors should also be members of the Regional Authority/District Council.

4.5 In areas under the jurisdiction of the Kings, or Queens, he or she should be the chairperson of such Regional Authority/District Council or any member of the authority appointed by him or her. The monarchs may be given powers similar to those of the State President in respect of Parliament.

4.6 in areas where there are, traditional authorities and in respect of which there is no monarch, all councillors and traditional leaders should elect amongst themselves the chairperson of such an authority.

4.7 The Government, in consultation with the Regional Authority/District Council concerned, should appoint a Chief Executive Officer accountable to Parliament and the Auditor General.

4.8 The Chairperson of both the traditional authority and the regional authority should always act in consultation with their councillors.

4.9 The rural communities and we reject the notion of municipalities for rural or traditional authority areas and for this reason the Government should revisit Chapter 7 of the Final Constitution of Act 108 of 1996.

5. CHAPTER 2

5.1 We believe that the establishment of Traditional Authorities as core of rural local Government is necessary.

5.2 We are advocating for the establishment of S Department of Traditional Affairs and Rural Development that must be separate from Department of Local Government. The reasons underlying our request for the establishment of such a department include the following;

(a) The system of administration is not the same.

(b) We cherish communal ownership rather than individual ownership.

(c) Our traditional and cultural values can only be promoted within traditional authorities.

(d) Almost all municipalities in the entire country are bankrupt and Masakhane campaigns have not succeeded and our fears are that we might find ourselves forced to finance them at the risk of not receiving the development we need for rural areas.

5.3 We therefore propose the establishment of structures that are necessary for traditional authorities and appropriate MEC should be given such power in consultation with House of Traditional Leaders in the Province.

6. CHAPTER 3

6.1 Similar provisions should be made for traditional councils.

6.2 We support the idea that councillors including those of traditional authorities must be elected. However, it must be made explicitly clear that traditional leaders (hereditary/royalty) within the area of jurisdiction of traditional authority must be members and that the most senior member of traditional leaders should chair the council.

6.3 The electoral system provided for a schedule 1 and 2 must accommodate for a system suitable for rural areas.

6.4 Persons who should be eligible to be councillor must only be those who permanently reside in the area and not passers-by.

7. CHAPTER 4

Clause 77 purports to recognise Traditional Authorities and limits the role of traditional leaders in Local Government sphere.

We would like to re-iterate that traditional authorities as stated above must be recognised as core of Local Government In rural areas under the jurisdiction of traditional leaders.

We are opposed to the idea that MEC should identity traditional leaders to serve in municipal councils on the grounds that include the following:

(a) This would subject traditional leaders to manipulation by politicians thereby compromise the stature of traditional leaders.

(b) Traditional leaders and all major political parties in this country agreed at the World Trade Centre that all traditional leaders should be certified to be members of Local Government structures and the idea that only 1 and not exceeding 10% of total councillors clearly suggest that such parties are reneging from the agreement. Be that as It may traditional leaders can consider further their membership in the district council if heads of traditional authorities within the area of the district council are fully-fledged members of such Local Government structure.

The use of words "may" and " after consultation" supports our contention that the role of traditional leadership is not recognised and protected in accordance with the constitutional principles quoted above.

We therefore regard the "Mayor" in rural areas governed by traditional authorities as traditional leaders and the wards in traditional authorities are administered by persons appointed by traditional leaders (amaphakathi and induna etc.), We have no problem that such an induna or umphakathi should administer such an area in consultation with a ward committee. We are opposed to the provision that in areas within the jurisdiction of traditional authorities there should be ward committees under chairperson who a councillor of local council" (see 69)."

We support that municipal council must have chief executive officers. We believe that in respect of traditional authorities the secretaries of such authorities must be recognised as chief executive officers and must be given the necessary training to be able to improve service to the communities and be accounting officers and head of administration In the same way town clerks are recognised in urban areas.

8. CHAPTER 5

Traditional authorities should exercise the functions and powers of municipalities within traditional authorities.

It is for this reason that we want traditional authorities to be democratised, transparent and accountable.

Traditional authorities should have the necessary infrastructure to enable them to administer the affairs of the people properly. Such infrastructure should include the following:

(a) Modern buildings (office accommodation and community health);

(b) Furniture and fittings;

(c) Office equipment;

(d) Transport etc.

Co-operation between various municipalities and traditional authorities is possible within the principles of co-operative Government and inter-Government relations set out in Chapter 3 of the Constitution Act 108 of 1996. The White paper on Local Government supports this contention when it concludes that: "There is no reason why African customs and traditions should be seen to be in conflict with the demands of modern governance. What is required is an innovative institutional arrangement, which combines the natural capacities of both traditional and elected local government to advance the development of rural areas and communities. The co-operative model proposed here provides a constructive role for traditional leadership at local level in the governance and development of rural communities.

The provisions of this chapter are necessary. However, it our view that a Ministry of Traditional Affairs and rural development need to be established and for this reason these provisions need consequential amendments.

9. SCHEDULE 1

Each locality within each administrative area must have a councillor. This will ensure that the needs of each and every community are alt taken into account . We are opposed to an idea that a locality (ward) should not have a representative (Clause 2).

The Independent Electoral Commission must determine the number of wards in areas under traditional authorities in consultation with such authorities (Clause 3)

We support the provisions pertaining to delimitation criteria. However another criteria should be expressly provided i.e. that the Election Commission should not cut across any boundaries of traditional authority in demarcating wards for local government purposes (Clause 4)

The electoral system for traditional authorities should not differ from the electoral system for other Local Government structures. People may elect 60% of councillors and people may elect 40% from party list. Traditional leaders should be members of the traditional authority in addition to the elected councillors. However, it should be provided that the majority of such authorities should be elected councillors.

… [illegible] people living in traditional community areas should have the right to elect ward candidate of their choice otherwise they would be unfairly discriminated against.

10. SCHEDULE 2

The district councils may be established but its of jurisdiction should not cut across traditional boundaries of kingdom or traditional authorities.

The heads of traditional authorities must be members of district councils which has jurisdiction in the area. However, in respect of areas within the jurisdiction of the King a special role of the King must be provided for and a mere ceremonial role cannot be supported. The King must have similar powers like the President in respect of National Parliament.

11. SCHEDULE 3

The provisions of this schedule are not relevant for traditional authorities in that the chairperson of these authorities is traditional leaders, We therefore contend that a specific provision In this regard should be made avoid any misunderstanding.

12. SCHEDULE 4

No comment

13. SCHEDULE 5

The provisions of this schedule are supported and must also be applicable to traditional leaders who are members or traditional authorities and district councils.

14. SCHEDULE 6

In view of our position, which our communities as support set out under Section, 77 above the provisions of this schedule are not necessary and must be deleted.

Traditional leaders should ideally be above party politics because by nature they are unifying symbols of their communities. We are therefore opposed to the clause that empowers MEC or Minister to appoint or identify traditional leaders to serve on the district council. The heads of traditional authorities should be members of the district council as stated above. This will enhance the status of traditional leaders.

15. CONCLUDING REMARKS

In conclusion I wish to advise this committee that this Government imposed Local Government structures through the elections that were conducted on 1 November 1995 and we stated before the election that we would not support those structures and they lack legitimacy and it is not surprising that they failed to deliver anything to our communities instead corruption prevails.

The Eastern Gape Government appointed consultants to hear the views of the people on this issue and identified some of the areas without consulting the House of Traditional Leaders or traditional leaders. It is obvious that they chose the areas they thought do not support traditional leaders. The late research found the following:

The President of out country appointed the Steyn Commission and it found inter alia that:

- "these leaders have a political influence in a democratic dispensation is self-evident;

- it is clear that certainly in some parts of the country their status and role in rural areas can be significant;

- to underestimate the significance of their status and role would be ill advised and not in the interests of stability, especially in such rural areas where there is still respect for the institution and benefit derived by communities from their activities.

- colonial designs, pre-union and post-union development, the grand design of "separate development" and the present political requirement have all left their mark on traditional leadership structures, it powers and on its legitimacy and credibility;

- the absence of a clearly articulated policy framework, as to what the democratically elected government sees as the future of these institutions and how they are to be Integrated into an efficient, accountable part of a South African system of Government, compounds the problems created by previous regimes"

We also trust that the Bill will be sent to various Houses and the Council of Traditional Leaders before adoption by Parliament.

We sincerely hope that the committee will seriously consider our submission as we are desirous of a stable government conducive to the upliftment of the quality of life of entoilling masses of our beloved country.

DATED IN UMTATA ON 20 JULY 1998

NKOSI M NONKONYANA ( ZANEMVULA!!!!!)

CHAIRPERSON: CONSTITUTIONAL DEVELOPMENT COMMITTEE OF COUNCIL OF TRADITIONAL LEADERS

Appendix 4: Western Cape Department of Health

DEPARTMENT OF HEALTH

SUBMISSION TO THE PORTFOLIO COMMTTEE ON THE MUNICIPAL STRUCTURES BILL

The vision of the Department of Health is a decentralised system based on the District Health System (DHS) for the delivery of primary healthcare in an equitable and accessible manner to all citizens. Key features of DHS include: a defined geographic area with a define population and local management. Some of the principles which underlie the establishment of a DHS are:

- the elimination of fragmented service delivery by the establishment of a single health rendering authority in each health district:

- the elimination of duplication of services by ensuring that services are delivered in a seamless integrated manner:

- the empowerment of communities in matters affecting their health by ensuring active community involvement in health matters

- ensuring local accountability to the communities served by the establishment of District Health Authorities (DHAs) which will ideally consist of local government councillors: and

- the promotion of intersectoral collaboration in the provision of services to the community.

The Department of Health has a keen interest in the Municipal Structures Bill as indeed we have in the entire process of restructuring local government. The types, categories, powers and functions of municipal structures will have a major impact on the establishment of the District Health System and on the manner in which primary health care services can be delivered. We therefore welcomed the opportunity to comment on the Municipal Structures Bill.

1. General comments

The structure and organisation of the Bill was found to be awkward and difficult to follow by most people who read it. For instance - the Bill would be easier to understand if the objective of each chapter was clearly stated, and the sections being referred to in the Constitution and Demarcation Bill were included as this would have led to reviewing this Bill in its entirety. In addition, it might be worth mentioning, in notes attached to the Bill if other draft legislation was pending that was intended to provide for issues affecting local government but not covered in this piece of legislation.

2. Comments by section/chapter

2.1 Definitions

It would be useful if definitions of the following were included:

conurbation:

plenary (as in local plenary & district plenary types of municipality); developing type municipality;

concurrent;

prescribed (meaning prescribed in regulations); majority (simple majority?).

2.2 Chapter 1

- In S2(a) the word 'reasonably' is used to refer to criteria to determine a Category A municipality. How is "reasonably" going to be defined/measured?

- Heading of S6 should read ". ..municipalities are not viable"

- S6 and S85 mention ?sparsely populated areas?. This designation seems to be in conflict with the principle of establishing viable amalgamated municipalities as contemplated in the White Paper for Local Government. There is currently much duplication and fragmentation of health services arising from the separation of local municipalities from their surrounding rural areas.

- S7(2)(b): should read ",..that enables a municipality to govern on its own initiative, collect revenue and render services in line with national and provincial norms and standards".

- S11 the basis (criteria to be used) on which the different categories (with the exception of metros) and types of municipalities will be determined are unclear.

2.3 Chapter2

- S12(2)(b) (ii): it is unclear how councillors in a district municipality type will be appointed.

- S12(3)(f): does not read well, perhaps the word 'concerning' should be deleted.

- S12(4) does not make any reference to deadlock breaking mechanisms. Does this - mean that the decision of the MEC for local government is final?

- S13(b)(ii) introduces the possibility of provincial variation in how differences in salaries and conditions of employment in the new municipalities will be handed. Is this intended?

- S14: the last line has a couple of words duplicated "rationalised by the"

- S15(1)(a): should provision for change in category of municipality also not be made here?

2.4 Chapter 3

- S17(4) should read: "A municipal council may..."

- S17(4) suggests that the Minister has the option of developing a policy framework. Should this not exist the basis on which a MEC will chose full time or part time councilors is not clear.

- S18(1)(a) it is unclear who (Minister or MEC) will prescribe the formula)

- S18(b) makes provision for municipalities with 3 councillors. The viability of municipalities with 3 councillors is unclear.

- S20 (1) may be amended to include election of councillors representing a sparsely populated area. This will mean that S20(3) may be deleted in its entirety

- S27(5)(b): replace amd' with and'.

S28 should make provision for functions to be delegated to the Speaker (given532(b)).

- S33 does not make sense as it suggests that a Speaker does not have a defined term of office and may serve for as long as the provisions of S34 do not apply. It may be useful to include a clause that specifically empowers a new council to elect a speaker at its first sitting.

- S32(a) appears to contradict S36 with respect to who may appoint an acting speaker.

2.5 Chapter 4

- S40 (b) should read ".. has appointed its representatives to the district council" Our understanding is that district councillors are not elected but appointed. This applies to S51 (1)(b) as well.

- S49 makes provision for the creation of sub-committees. Would non-councillors be eligible to serve on these either because of their technical expertise or to broaden democracy (to balance representative with participatory democracy). This applies to S56 as well (mayoral committees).

- S58: provision should be made for the metro council to act with the concurrence of the MEC for local government when determining the boundaries of metro local councillors given the possible impact on service delivery (this applies in particular to the delivery of health services as explained above).

- S77(2) does 'participation' mean that the traditional leader will have voting rights in council?

- S79(1) should read "...and also be the accounting officer of the municipality.

- S79(3)(a) should read ".. all income and expenditure of the municipality''.

2.6 Chapter 5

- Notwithstanding the provisions of the Constitution the powers and functions of each category of municipality should be clearly spelt out to ensure that there is not confusion and for ease of reference and reading. With reference to the powers and functions assigned to each category of municipality, it is unclear if all types of municipality have the same powers and functions within each category.

- S81(2) incorrectly refers to S 78. Is the correct reference perhaps S81(1)? It our assumption is correct then this provision does not make sense as it does not clarify how the functions of a local and district municipality will be shared or differentiated. If one takes municipal health services as an example it is unclear which services will be rendered by a district council and which by the local council (depending on this split the fragmentation of services that the Department of Health would like to eliminate and the creation of one-stop-shops at which as many health services as appropriate can be provided may be difficult to achieve), -Should specific provision not be made to ensure that S155(7) of the Constitution is implemented in some way? (national & provincial government have the legislative and executive authority to see to the effective performance of Schedule 4 & 5 functions by municipalities - could this not be included in S52(3)(a) which refers to the evaluation of progress against key performance areas by specifying that provincial integrated plans will include some of these key performance indicators?).

- S82: it may be wise to consider the delegation of services with the concurrence of the Minister (national function) or MEC (provincial function) or both if it is a concurrent function responsible for the provision of services that may be affected by such delegations, In addition, all municipalities should be obliged to participate in developing a provincial integrated development plan (there is no obligation on municipalities to co-operate with provinces in this Bill) S83(3).' The Constitution makes provision for both national and provincial government to support municipalities. This general point should be included here. It is possible that the province may need to support a municipality with respect to the provision of health services in which case the MEC for health will have to assist.

- S84 must make provision for the MEC for local government to consult with her/his counterparts in the provincial Cabinet before making such decisions as each line MEC may have different criteria that should be used for the types of services she/he is responsible for.

- S84 provides for the ?designation of developing municipalities? whose functions are determined by the MEC for local government. The district municipality's role is to build capacity and report to the MEC every 6 months on progress made. It is unclear what criteria will be used for assessing capacity and whether these are linked to the criteria for assessing the viability for municipalities as contained in the Demarcation Bill. S76 also refers to sparsely populated areas where the district municipality will retain functions. It would be preferable for these functions to be addressed by an amalgamated municipality.

Appendix 5: South African Local Government Association

SALGA's Comments:

Municipal Structures Bill 1998

1. Introduction

The municipal structures bill, the second in series of legislation that directly flows from the white paper is been gazetted for public comment. The South African local Government Association welcomes the Municipal Structures Bill.

2. Background

The local government transformation process from white paper to demarcation act and municipal structures bill- Systems Bill SALGA has been consistently making an input.

SALGA' s main objective in legislative process: Protect and advance-

· Local Government as a sphere

· Developmental role

· Co-operative governance

· Viability and sustainability

A. Local Government as a sphere

· Bill is too prescriptive- danger of over-regulation and relegation to admin appendage of other spheres.

Recommend: Bill should leave room for creativity and innovation to enable Local Government to develop in a dynamic way.

· Code of Conduct- out of synch with the notion of Local Government as a sphere led by elected representatives

- Unequal treatment of elected representatives

Recommend: Uniform code for all elected representatives with or without specific provisions for peculiar circumstances of each sphere

· Code still maintains old apartheid in the balance of power between officials and elected representatives

Recommend: Mechanisms be built into legislation for delegation as well as review on an annual basis

· Code to be enabling- enhance good governance

B. Developmental Local Government

· Powers and functions between certain categories adequate BUT the concept of developing municipality should be treated cautiously

Recommend: - Tighten criteria for classifying municipalities a "developing"

- specific provisions that would oblige both National and Provincial spheres to actively assist such a municipality to become fully developed

· Bill to be enabling in nature e.g. current blanket ban on offshore funding

C. Co-operative Governance

· Bill downplays role an significance of organised local government in various ways

Recommend: General clause that will oblige National/Provincial Government to consult with organised local government in the exercise of powers conferred on them by the Bill

D. Viability and Sustainability

· Will be dealt with in more details on the Systems Bill i.e. institutional transformatory mechanisms. However, the Municipal Structures Bill is also expected to advance this objective

Recommend: - Incorporate recommendations of project viability

- ensure that legislative process of Department of Finance I. respect of matters affecting Local Government is informed by Local Government legislative process e.g. The Treasury Control Bill

Specific Provisions in Municipal Structures Bill (28p submission)

· Size of Municipalities: - Ceiling to increase to 270 in the Metro

- Above 60 for local and district

· Dissolution by MEC: To be linked to 139 intervention and be regulated in terms of clear criteria - absent from Municipal Structures Bill

Reference to Metropolitan local councils in category A is misleading and misnomer

· Executive Mayors: Not in general American sense-but narrow sense invited by constitution

· Traditional Leaders: Acknowledge reality of their existence and support formulation

· Establishment of municipalities: - individual municipalities to have a say in the type of municipality to be established for a specific area

· Terms of Office: - No distinction to be drawn between councillors and their assigned responsibilities. All, including Mayors to serve for term of elected period

· Executive committees: - Simple majoritarian system preferred and not PR which is inconsistent National and Provincial

3. General Overview

· SALGA support the overall thrust of this bill and believes that it takes the transformation agenda forward.

· The bill contains several new and very innovative ideas, such as an executive mayor, a speaker of council area committees for metropolitan areas and ward committees. This is aimed at ensuring effective participatory democracy and increased accountability.

4. General Concerns

· While SALGA broadly support the bill , there are however flaws in the bill which need to be corrected.

1. The legislation is silent on the role of organised local government. Organised Local Government through SALGA has a key role to play as partners with national and provincial government in Local Government transformation. SALGA has successfully established itself as a national organisation representing the interest of all municipalities in South Africa.

· SALGA's key role is the effective representation of local government in legislative process of all spheres of government and in intergovernmental executive processes.

The bill that is before us does not acknowledge that important role. We wish to submit that, in line with the constitution, organised local government be consulted by Provinces and or National Government in the exercise of the powers and functions granted them in terms of the bill.

Good governance and co-operative governance?

· The bill fails to embody the spirit of local government as a sphere of government and runs the risk of reversing this important achievement.

· Good governance is very essential for achieving the aims of transformation in local government. It is thus imperative for this bill to seek to build the capacity of local government so 5 to enable good governance in an enabling manner rather than restrictively. This does not seem to be the case under the current formulation.

5. Specific comments

a. Chapter2

Establishment of Municipalities

· This chapter provides for the establishment of the municipalities. The MEC of local government, by notice on the government gazette must establish a municipality in each municipal area.

· The bill need to provide a mechanism of consultation with established municipalities before typification takes place. It is noted that typification as provided for in the bill, in any event only relates to the internal structuring of municipality.

· SALGA believes that the organised local government in different provinces must also play a role in the establishment of municipalities in their respective provinces.

b. Schedule 5

Code of Conduct for councillors

· The code of conduct has serious flaws which are both constitutional and political. The constitution provides who is legible to be a member of the municipal council (see section 47 read with section 158 of the constitution). The introduction of new grounds for disqualification for members duly elected in terms of the constitution is undesirable and probably unconstitutional.

· We call for a uniform code of conduct for all elected public representative in the three spheres of government. Such a code must have the primary objective of enabling elected representatives to enhance good governance.

c. Section 86

Exemptions to certain provisions of this act.

· This clause acknowledges the fact that the matters referred to there are part of the municipal internal procedures as provided for by section 160 of the Constitution. This bill is very prescriptive to municipalities on how to structure their internal arrangements. It then task the MEC with exempting municipalities from these provisions.

· SALGA believes that the objective of this section must be to foster good governance. If so, the municipalities should be able to make by-laws that are not in conflict with the constitution and which do not impinge on good governance.

· The provincial government must play a positive role and approve those by-laws which are in line with the provided framework. Provincial government has an obligation to capacitate local government.

· The exercise of legislative authority in respect of this of these matters could be restricted by ensuring that the provincial governments are not prejudicial to any principles of good governance.

d. Terms of office

The term of office for all council structures and elected leaders such as the Mayors and executive committees should be for their elected duration in terms of the constitution.

e. The size of municipalities

A formula must be designed to allow for flexibility in determining the size of the a municipal council of local authorities.

SALGA supports the decrease in number of municipalities and suggest that metro councils be increased to a maximum of 270 councillors and that the district councils be increased as well according to appropriate formula. The resultant effect of the increase in membership will still see a decrease nationally in the number of councillors holding office. We believe that the increase will have no cost effects.

f. Part 6: Participation of traditional leaders

SALGA recognises the role of traditional leaders in the democratic institutions. The role and participation of traditional leaders in a local government need to be clarified through legislation. Participation of traditional leaders in the democratically elected councils must be within clearly regulated parameters.

Traditional leaders unlike the elected representatives will have no voting powers in local government.

g. Part 3: Metropolitan Local Councils

The constitution does not allow the creation of more than one council in the same area when a category A municipality has been established for that area. The term "Metropolitan Local Councils" is therefore both misleading and a misnomer.

SALGA recommends that the term "area committee" be reinstated because it properly describes the relationship between this committee, the area it serves and the metropolitan council.

h. Developing Municipalities

The local plenary (or developing) type of local municipality which has general lack of capacity, must be established for nothing else but the purpose of capacity building. This legislation must go further than defining and provide clear criteria for determining such municipalities. The criteria for their establishment must protect the integrity of local government.

i. Dissolution of municipal councils

Section 139 of the South African constitution provides for the provincial supervision of local government.

Section 139(3) of the constitution requires national legislation to regulate the process of interventions.

National legislation to regulate the process of intervention is not yet in place. SALGA has called on the Minister to put in place such a legislation. The bill in front of us is not such a legislation and cannot therefore pronounce itself on the dissolution of council.

SALGA does not support Clause 29 of this bill and we believe that the dissolution of a dully elected municipality by other sphere of government must be clearly considered and be dealt with in other legislative process in line with Section 139 of the South African constitution.

6. Conclusion

The bill represents a progressive step forward in the transformation process. We look forward to the incorporation of our comments in the final draft of the Bill.

We congratulate both the Minister and Portfolio Committee for the expeditions and transparent manner in which the Local Government transformation process is being pursued.

Detailed Comments

INTRODUCTION:

The Bill is an improvement on its previous draft in significant aspects, notably the typification of municipalities which allows more flexibility for the municipality concerned, as well as the criteria identifying the categories of municipalities and the application thereof.

SALGA is generally still concerned about the apparent underlying philosophy in the Bill. It appears as if the legislator intends legislating for control over worse case scenarios in Local Government instead of providing through other means monitoring and support functions to those municipalities who so desperately need this. In the process those municipalities which are capable of performing their functions in a responsible manner, are restricted in their ability to govern on their own initiative the Local Government affairs of their communities.

It is suggested that this Bill instead of creating a watch-dog for Local Government, should rather set positive goals for municipalities to achieve and to put measures into place when those objectives are not met.

In this regard reference may be made to the proposed clause 86 of the Bill. That clause acknowledges the fact that the matters referred to there are part of the municipalities internal procedures as provided for in section 160 of the Constitution. This notwithstanding the Bill prescribes to every municipality from the most capable metropolitan council to the smallest developing municipality how to structure its internal arrangements. It then proceeds to task the MEC with exempting municipalities from these provisions.

Municipalities do not want to be exempted from principles of good governance.

Some municipalities may want to build good governance into their by-laws to ensure effective public administration and service delivery for their area and they have a constitutional right to do so (see section 151(3) and (4) of the Constitution).

If it is the intention of the legislature to allow any municipality to exercise in a responsible manner their rights in terms of section 160 read with section 15 1(3) of the Constitution, then the following proposal is made:

1. The Bill must acknowledge a municipality's legislative competence in respect of the matters referred to in clause 86 of the Bill.

2. The Bill may then provide that the provisions of the Act (mentioned in clause 86) will be deemed to be by-laws made by all municipalities.

3. A municipality should then be allowed to amend any of these provisions by way of exercising its legislative authority.

4. The exercise of legislative authority in respect of these matters could be restricted by requiring that such amendments shall not be prejudicial to any principle of good governance.

SPECIFIC COMMENTS:

CHAPTER 1 - CATEGORIES AND TYPES OF MUNICIPALITY

Part 1: Categories of municipality

Clause 2 - The contents of this clause are supported.

The inclusion of the word conurbation meaning "a great aggregation or continuous network of urban communities" (see Webster's 3rd New Introduction Dictionary) may significantly enhance the application of these criteria.

Clause 3 - The contents of this clause are generally supported. However, some members of SALGA felt that stand alone towns outside metropolitan areas, should be permissible.

Clause 4(1) - The contents of this clause are supported.

Clause 4(2) - This clause should be redrafted to read "For purposes of applying the criteria referred to in subsection 1, the Minister must consult with the MEC for Local Government in the province concerned organized local government and the Demarcation Board".

Motivation:

As this clause is currently drafted, it is not clear for what purpose the Minister must consult the bodies concerned.

Clause 5(1) - Delete the word "single".

Motivation:

A category A municipality must per definition be the only municipality created for

that area.

Clause 5(2) - Delete the word "core city" and revert back to previous proposal.

Motivation:

The word "core city" is not defined and in view of the difficulties in defining this term or applying this concept, it is suggested that the original proposal should be retained.

Clauses 7, 8, 9 and 10 - The contents of these clauses are generally supported. Subject to the terminology to be brought in line with the comments raised under clause 57 some of the provisions contained herein may be unconstitutional.

Clause 11 - It is suggested that this clause be re-worded as follows:

"Provincial government in consultation with the relevant organised local

government body must determine for each ..."

Motivation:

1. Subject to the proposed constitutional amendment being passed, this will be a function of the provincial government.

2. Organised Local Government may wish to suggest a range of types in the province, taking cognisance of local circumstances.

CHAPTER 2:

ESTABLISHMENT OF MUNICIPALITIES

Clause 12 - The contents of this clause are generally supported save for:

The principle is accepted that typification does not impact on the demarcation of a municipality or its establishment, then it is logical to provide for a mechanism to

allow consultation with the established municipality before typification takes place.

It is noted that typification as provided for in the Bill, in any event only relates to the internal structuring of a municipality.

The provisions of clause 12(3)(f) should be deleted.

Motivation:

Separate legislation already provides that a municipality may determine the actual payment to its members irrespective of whether they are full-time or part-time

councillors. In addition, the personal circumstances of an elected office bearer, will determine his or her availability to serve in a full or part-time capacity. To be

prescriptive in this respect will disqualify potential office bearers from taking up important positions in the municipal council.

This issue in any event forms part of a municipal council's internal arrangements.

Clause 13(1) - The words "in title" to be replaced with "in law".

Motivation:

The new municipality should be the successor of the previous municipality in every regard, not only in respect of ownership of immovable property.

Clause 13(2)(b)(iii) - Should be deleted.

Motivation:

The necessity for this occasion cannot arise, unless it is envisaged to disestablish a municipality and not to create another municipality for that area. In such an event, however, it is the duty of the municipality so disestablished to make the necessary arrangements to retrench its staff after following the procedures prescribed in the Labour Relations Act. The Act places certain duties on the employer, not the legislator. The only other occasion where retrenchment might be applicable, would be after the transfer of the staff to the newly created municipality, and again it is the responsibility of the employer to effect such retrenchment.

Clause 13(2)(b)(iv) - Insert the word "movable" before the word "assets".

Motivation:

Immovable assets should vest in the new municipality and a new sub-clause (vi) should be added to read "the vesting of immovable property from the existing

municipality to the superceding municipality". As a consequence clause 13(4)(a) should be amended by substituting the words "transferred to" with the words

"vested in".

The rest of the clause is supported.

Clause 14 - The contents of this clause are supported.

Clause 15(1) - Add the words "either on request of the municipality concerned or on his own volition, with the concurrence of the municipality concerned" after the

words "in a province".

Clause 15(1)(b) - To be made a sub-clause of clause 15(1)(a).

Motivation:

The same procedures should apply.

The rest of this clause is supported.

Clause 16 - The contents of this section are supported.

CHAPTER 3

MUNICIPAL COUNCILS

PART 1:

Clause 17(3) - Add the words "subject to the provisions of section 18" at the beginning of the sub-clause.

Clause 17(4) - Delete this clause. See earlier motivation under clause 12.

Clause 18(1)(b) and (c) - SALGA recommends an appropriate formula to increase the number of councillors in both district and metropolitan areas.

The rest of this clause is supported.

Clause 19(2) - This sub-clause is to be deleted.

Motivation:

1. This power is constitutionally awarded to National Legislation and cannot be delegated to the Provincial Executive.

2. Local Government does not support any exemption from the provisions of section 158(1)(a) of the Constitution. This exemption does in any event not apply to any other sphere of government.

The rest of this clause is supported.

Clause 20 - This clause is supported.

Clause 20(1) (a) - SALGA supports the proposed constitutional amendment, which, if approved, will necessitate an amendment of this clause. The rest of this clause is supported.

Clause 22(1)(c) - The proviso is to be deleted.

Motivation:

This clause contradicts clause 22(3)(c). In any event, to allow such a council to function for as long as one year is too long a period as this may transcend a financial year-end, when the dissolved council will have to approve a budget which will bind the new council.

The rest of the clause is supported.

Clause 23 - The contents of this clause are supported.

Clause 24(d) - Is to be deleted.

Motivation:

The removal is unconstitutional.

See also the proposal in respect of Schedule 5.

The rest of this clause is supported.

Clause 25 - The contents of this clause are supported.

Clause 26 - This matter falls within the legislative competence of a municipality and should be dealt with in terms of the proposals submitted in respect of clause 86.

Clause 27(4) and (5) - See comments, clause 86.

Clause 28 - The word "assignment" in the heading should be replaced with the word "delegation".

Motivation:

The amendment is necessary in order to be consistent with the wording of clause 28(1)(a).

Clause 28(1)(a)(iv) - Should be deleted.

Motivation:

The principle of allowing non-elected members who are not accountable to take decisions on behalf of the council, is not acceptable. Even if a municipality do not delegate any powers to this committee the legal possibility of doing this may cause some problems - e.g. principle of estoppel.

Clause 28(1) (a) (vi) - The words "Chief Executive Officer" to be replaced with the word "officials".

Motivation:

Delegations form part of the internal operations of a municipality which may wish to delegate to other officials in addition to its Chief Executive Officer. See further comments, clause 86.

Clause 28(2)(b) - Replace the word "effected" with the word "recorded".

Motivation:

Many delegations are verbally effected. The need to record such delegations is important.

See further comments, clause 86.

Clause 29(1) - This section is supported. However, the provision of the requirement of a two-third majority contravenes section 160(3)(c) read with section 160(3)(b) of the Constitution and will require a constitutional amendment.

Clause 29(3)(b) and (4) - Should be deleted.

Motivation:

Section 139 of the Constitution deals extensively with the consequences of interventions and does not allow for the dissolution of a duly elected municipal council by another sphere of government. In any event, in terms of the provisions of section 139 of the Constitution, any such intervention must be capable of termination. See section 139(2)(c) of the Constitution.

The proposed amendment to section 159 of the Constitution, providing for the dissolution of a duly elected municipal council, is not supported as this principle does not apply to the other spheres of government.

Clause 30(1) - This clause not accepted.

Motivation:

The intervention of the Provincial Executive in the affairs of a municipality must be in accordance with the provisions of section 139 of the Constitution.

Clause 30(2) - Should be deleted.

Motivation:

Section 139(1)(a) and (b) of the Constitution already prescribe the powers that provincial legislature may exercise in this respect.

PART TWO:

SPEAKERS OF MUNICIPAL COUNCILS

Clause 31(1) - The following proviso should be added to the sub-clause "provided that in the case of a municipal council which does not have an executive committee or an executive mayor, the chairperson of the council will be referred to as the mayor of the council, who will have the same powers and functions as a speaker referred to in this part".

Motivation:

The institution of mayor is well accepted even in small municipalities who may not qualify for executive committees or executive mayors.

Clause 31(3) and (4) - See comments clause 86.

Clause 32(a), (c), (d), (e) and (f) - The provisions of this clause are supported as it sets national standards for good governance.

Clause 32 (b) - See comments clause 86.

Clause 33 - See comments clause 86.

Clause 34 - See comments clause 86.

Clause 35 - See comments clause 86.

Motivation:

In addition to the comments in respect of clause 86, a particular municipal council may wish to impose more restrictive measures in respect of the removal from office of its office bearers.

Clause 36 - See comments clause 86.

CHAPTER FOUR

INTERNAL STRUCTURES AND FUNCTIONARIES

PART ONE: EXECUTIVE COMMITTEES

Clause 37 - Insert the words "which have 10 or more members in the council" after the word "municipality" where it appears in the first line of the clause.

Motivation:

Section 160(5) of the Constitution requires National Legislation to provide objective criteria to determine whether a municipal council may elect an executive committee or any other committee.

Clause 38(1) - Should the suggested amendment to clause 37 be accepted, then the last sentence of clause 38(1) may be deleted.

Motivation:

In this event this proviso would be superfluous.

Clause 38(2) - Replace with "an Executive Committee must be composed in such a manner that allows parties and interests reflected within the council to be fairly represented and is consistent with democracy".

Motivation:

The current clause is inconsistent with the provisions of section 160(8)(a) and (b) of the Constitution which require fair representation of parties and interests. Fair representation could be achieved in other ways than by constituting a committee in "substantially the same proportion".

If this proposal is accepted, then sub-clause 38(3) should be deleted.

Clause 39 - See comments clause 86.

The Bill should contain a clause which will ensure that a municipality structures its committee system;

1. in accordance with its service delivery needs.

2. in such a manner as to promote informed and speedy decisions being taken by members exposed to that field of endeavour.

3. in such a manner as to provide checks and balances when appropriate.

4. which will prescribe a clear line of command.

5. which will prevent an overlapping of functional responsibilities.

This clause should thereafter provide that municipalities should structure themselves in such a manner as to comply with this policy. Clauses 39(1) and (2) are accordingly supported as a model for municipalities, subject to the provisions of clause 86.

Clause 39(1)(a) - Must be reworded to read "the committee of council which will receive reports from council's other committees and which will forward these reports together with its own recommendations to council where a matter cannot be disposed of in terms of delegated authority".

Clause 39(1)(a) - Must be deleted.

Motivation:

If the executive committee is to be the principal committee as contemplated in the draft Bill, then one cannot allow committees to send their reports directly to council as it will obscure reporting lines.

Clause 39(2) - See comments clause 86.

Clause 39(3) - See comments clause 86.

Clause 39(4) - See comments clause 86 and should be amended to read as follows an executive committee must report regularly to the members of the municipal council on all decisions taken by the committee".

Clause 40 - See comments clause 86.

Clause 41 - Should be amended to read as follows "The term of the executive committee is as decided by council".

Motivation:

The current clause is meaningless.

Clause 42 - See comments clause 86.

Clause 43(1), (2), (3) and (4) - The contents are supported. See comments clause 86.

Clause 43(5) - See comments clause 86.

Clauses 44, 45, 46, 47, 48 and 49 - See comments clause 86.

Clause 49 - If it is intended that the committees mentioned in this clause are the same committees referred to in clause 76, then these two clauses are in conflict in that in clause 49 the executive committee is allowed to appoint its sub-committees whereas clause 76 requires council to do so.

PART THREE - METROPOLITAN LOCAL COUNCILS

The Constitution does not allow the creation of more than one council in the same area when a category A municipality has been established for that area. The term "Metropolitan Local Councils" is therefore both misleading and a misnomer.

It is recommended that the term "area committee" be re-introduced because it properly describes the relationship between this committee, the area it serves and the metropolitan council, as opposed to a committee entrusted with a functional responsibility of operation.

Consequential amendments must therefore be effected.

PART FOUR - WARD COMMITTEES

Clause 68 - The contents of this clause are supported.

Clause 69 - The contents of this clause are supported, however, it is suggested that the following proviso to clause 69(1) be inserted "subject to the provisions of section 74."

Motivation:

The obligation to re-establish a ward committee in an area where such committee is not viable, is clearly against the principle of good governance.

Clause 70(a) and (b) - The contents of this clause are supported.

Clause 70(c) - This sub-clause must be deleted.

Motivation:

Members of SALGA strongly felt that decision-making powers should not be assigned or even delegated to committees consisting of non-elected representatives who are not accountable.

PART SIX - PARTICIPATION OF TRADITIONAL LEADERS

Clause 77 - SALGA support participation of trade leaders on a non voting basis.

CHAPTER FIVE

FUNCTIONS AND POWERS OF MUNICIPALITIES

Clause 80 - The contents of this clause are supported.

Clause 81(1) and (2) - The contents of this clause are supported, subject to the amendments proposed below being accepted.

Clause 81(3) - By deleting the words "performing functions and exercising powers of the nature describe in sub-section (1) in its area" and substituting this with the words "entering into an agreement with the district municipality in whose area it falls to perform any of the functions and exercise powers allocated to that district municipality, provided that in the re-allocation of powers and duties, practicability, technological advisability and economical and financial efficiency must be taken into consideration".

Clause 82 - This clause to be replaced with a provision worded similarly to section 10C(8) read with Schedule 8 of the Local Government Transition Act, 1993.

Motivation:

The way clause 81(3) is currently worded may have the consequence of a duplication of functions by different authorities in the same area.

Re-allocation should be done for rational reasons.

Allowing MEC's to adjudicate disputes between municipalities, incorrectly assumes that Local Government is a function of Provincial Government.

Clause 83 - The contents of this clause are supported.

Clause 83(3) - Insert the words "or to support a local municipality to provide support services to a district municipality" at the end of the sentence.

Motivation:

The purpose of the proposal is to promote consistency with the provisions of clauses 83(1) and (2).

Clause 84 - There is currently no definition in the Bill of what constitutes a local municipality of a developing type.

In addition, there are no criteria to determine when such a municipality ceases to be a developing type.

The current provisions of this clause attempt to assign the division of powers and functions between a developing type and district municipality to an MEC. The

appropriate mechanism to do this is by way of National Legislation (see section 155(3)(c) of the Constitution).

Clause 84(1) - Section 79(2) should be amended to read section 81(2).

Clause 85 - The contents of this clause are supported.

CHAPTER SIX MISCELLANEOUS MATTERS

Clause 86 - Clause 86 should be replaced with the following clause "The provisions of sections 26, 27(4) and (5), 28, 31(1) to (4), 32(b), 33 to 36, 39 to 42, 43(3) and (5), 44 to 49, 51(3), 53 and 54, 56, 59, 61, 64 to 67, 75 and 76, 79, Schedule 3 shall apply to every municipality unless amended by that municipality by way of a by-law, provided that such by-law will not inhibit the principles of

good governance

Motivation:

This Bill should set positive goals for municipalities to achieve. It does not make any sense to allow a municipality from being "exempted" from any requirement aimed at good governance. Some municipalities may want to build good governance into their by-laws to ensure effective public administration and service delivery for their area and they have a constitutional right to do so (see section 151(3) and (4) of the Constitution).

Clauses 87, 88 and 89 - The contents of these clauses are supported.

Clause 88 - The heading of this clause should read "Transitional Arrangements" to be consistent with the contents of the clause. The clause does not purport to repeal

any legislation.

SCHEDULE 5:

See early comments on code of conduct.

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